1
Exhibit t
[CONFORMED]
SOFAMOR XXXXX GROUP, INC.
3,220,000 Shares of Common Stock
Underwriting Agreement
February 24, 1998
X.X. Xxxxxx Securities Inc.
PaineWebber Incorporated
Xxxxx Xxxxxx Inc.
As Representatives of the several Underwriters
listed in Schedule I hereto
c/o X.X. Xxxxxx Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Sofamor Xxxxx Group, Inc., an Indiana corporation (the "Company"),
proposes to issue and sell 1,620,000 shares (the "Company Shares") of Common
Stock, no par value (the "Common Stock"), of the Company, and certain
shareholders of the Company named in Schedule II hereto (the "Selling
Shareholders") propose to sell 1,600,000 shares (the "Selling Shareholder
Shares," and, together with the Company Shares, the "Shares") of
Common Stock of the Company as set forth in Schedule II hereto, to the several
Underwriters listed in Schedule I hereto (the "Underwriters"), for whom you are
acting as representatives (the "Representatives").
The Company has prepared and filed with the Securities and Exchange
Commission (the "Commission") in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Securities Act"), a registration
statement on Form S-3, including a prospectus, relating to the Shares. The
registration statement as amended at the time when it shall become effective,
including information (if any) deemed to be part of the registration statement
at the time of effectiveness pursuant to Rule 430A under the Securities Act, is
referred to in this Agreement as the "Registration Statement", and the
prospectus in the form first used to confirm sales of Shares is referred to in
this Agreement as the "Prospectus". If the Company has filed an abbreviated
registration statement pursuant to Rule 462(b) under the Securities Act (the
"Rule 462 Registration Statement"), then any reference herein to the term
"Registration Statement" shall be deemed to include such
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Rule 462 Registration Statement. Any reference in this Agreement to the
Registration Statement, any preliminary prospectus or the Prospectus shall be
deemed to refer to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 under the Securities Act, as of the effective
date of the Registration Statement or the date of such preliminary prospectus or
the Prospectus, as the case may be, and any reference to 3.
"amend", "amendment" or "supplement" with respect to the Registration
Statement, any preliminary prospectus or the Prospectus shall be deemed to refer
to and include any documents filed after such date under the Securities Exchange
Act of 1934, as amended, and the rules and regulations of the Commission
thereunder (collectively, the "Exchange Act") that are deemed to be incorporated
by reference therein.
1. The Company agrees to issue and sell the Company Shares and each
of the Selling Shareholders agrees, severally and not jointly, to sell the
Selling Shareholder Shares set forth opposite the name of such Selling
Shareholder on Schedule II hereto to the several Underwriters as hereinafter
provided, and each Underwriter, upon the basis of the representations and
warranties herein contained, but subject to the conditions hereinafter stated,
agrees to purchase, severally and not jointly, from each of the Company and each
of the Selling Shareholders at a purchase price per share of $68.16 (the
"Purchase Price") the number of Shares (to be adjusted by you so as to eliminate
fractional shares) determined by multiplying the aggregate number of Shares to
be sold by each of the Company and each of the Selling Shareholders as set forth
opposite their respective names in Schedule II hereto by a fraction, the
numerator of which is the aggregate number of Shares to be purchased by such
Underwriter as set forth opposite the name of such Underwriter in Schedule I
hereto and the denominator of which is the aggregate number of Shares to be
purchased by all the Underwriters from the Company and all the Selling
Shareholders hereunder.
2. The Company and the Selling Shareholders understand that the
Underwriters intend (i) to make a public offering of the Shares and (ii)
initially to offer the Shares upon the terms set forth in the Prospectus.
3. Payment for the Shares shall be made by wire transfer in
immediately available funds to the account specified to the Representatives by
the Company, in the case of the Company Shares, and to the account specified to
the Representatives by the Attorneys-in-Fact (as defined below), or either of
them, in the case of the Selling Shareholder Shares, on February 27, 1998, or at
such other time on the same or such other date, not later than the fifth
Business Day thereafter, as the Representatives and the Company and the Selling
Shareholders may agree upon in writing. The time and date of such payment for
the Shares are referred to herein as the "Closing Date." As used herein, the
term "Business Day" means any day other than a day on which banks are permitted
or required to be closed in New York City.
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Payment for the Shares to be purchased on the Closing Date shall be
made against delivery to the Representatives for the respective accounts of the
several Underwriters of the Shares to be purchased on such date, registered in
such names and in such denominations as the Representatives shall request in
writing not later than two full Business Days prior to the Closing Date with any
transfer taxes payable in connection with the transfer to the Underwriters of
the Company Shares duly paid by the Company and any transfer taxes payable in
connection with the transfer to the Underwriters of the Selling Shareholder
Shares duly paid by the Selling Shareholders. The certificates for the Shares
will be made available for inspection and packaging by the Representatives at
the office of X.X. Xxxxxx Securities Inc. set forth above not later than 1:00
P.M., New York City time, on the Business Day prior to the Closing Date.
4. (A) The Company represents and warrants to each Underwriter and
the Selling Shareholders that:
(a) no order preventing or suspending the use of any preliminary
prospectus has been issued by the Commission, and each preliminary
prospectus filed as part of the Registration Statement as originally filed
or as part of any amendment thereto, or filed pursuant to Rule 424 under
the Securities Act, complied when so filed in all material respects with
the Securities Act, and did not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided that
this representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with (i) information
relating to any Underwriter furnished to the Company in writing by such
Underwriter through the Representatives expressly for use therein and (ii)
information relating to the distribution of the Shares furnished to the
Company in writing by the Representatives expressly for use therein;
(b) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceeding for that purpose has been
instituted or, to the knowledge of the Company, threatened by the
Commission; and the Registration Statement and Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or
supplements thereto) comply, or will comply, as the case may be, in all
material respects with the Securities Act and do not and will not, as of
the applicable effective date as to the Registration Statement and any
amendment thereto and as of the date of the Prospectus and any amendment
or supplement thereto, contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary
to make the statements therein not misleading, and the Prospectus, as
amended or supplemented, if applicable, at the Closing Date, will not
contain any untrue statement of a material fact or omit to
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state a material fact necessary to make the statements therein, in light
of the circumstances under which they were made, not misleading; except
that the foregoing representations and warranties shall not apply to
statements or omissions in the Registration Statement or the Prospectus
made in reliance upon and in conformity with (i) information relating to
any Underwriter furnished to the Company in writing by such Underwriter
through the Representatives expressly for use therein and (ii) information
relating to the distribution of the Shares furnished to the Company in
writing by the Representatives expressly for use therein;
(c) the documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the
Securities Act or the Exchange Act, as applicable, and none of such
documents contained an untrue statement of a material fact or omitted to
state a material fact necessary to make the statements therein, in light
of the circumstances under which they were made, not misleading; and any
further documents so filed and incorporated by reference in the
Prospectus, when such documents are filed with the Commission, will
conform in all material respects to the requirements of the Exchange Act,
and will not contain an untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in light
of the circumstances under which they were made, not misleading;
(d) the consolidated financial statements of the Company, and the
related notes thereto, included or incorporated by reference in the
Registration Statement and the Prospectus present fairly the consolidated
financial position of the Company and its consolidated subsidiaries as of
the dates indicated and the results of their operations and changes in
their consolidated cash flows for the periods specified; and said
financial statements have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis, and the
supporting schedules included or incorporated by reference in the
Registration Statement present fairly the information required to be
stated therein;
(e) since the respective dates as of which information is given in
the Registration Statement and the Prospectus, there has not been any
change in the capital stock or long-term debt of the Company or any of its
subsidiaries, or any material adverse change, or any development involving
a prospective material adverse change, in or affecting the business,
prospects, management, financial position, stockholders' equity or results
of operations of the Company and its subsidiaries, taken as a whole (a
"Material Adverse Change"), otherwise than as set forth or contemplated in
the Prospectus; and except as set forth or contemplated in the Prospectus,
neither the Company nor any of its subsidiaries has entered into any
trans-
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action or agreement (whether or not in the ordinary course of business)
material to the Company and its subsidiaries, taken as a whole;
(f) the Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of its jurisdiction of
incorporation, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus, and
has been duly qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each other jurisdiction
in which it owns or leases properties, or conducts any business, so as to
require such qualification, other than where the failure to be so
qualified or in good standing would not have a material adverse effect on
the business, prospects, management, financial position, stockholders'
equity or results of operations of the Company and its subsidiaries, taken
as a whole (a "Material Adverse Effect");
(g) each of the Company's subsidiaries has been duly incorporated or
formed, as the case may be, and is validly existing as a corporation,
partnership or limited liability company, as the case may be, under the
laws of its jurisdiction of incorporation or formation, as the case may
be, with power and authority (corporate and other) to own its properties
and conduct its business as described in the Prospectus other than where
the failure to have such power and authority would not have a Material
Adverse Effect, and has been duly qualified as a foreign corporation,
partnership or limited liability company, as the case may be, for the
transaction of business and is in good standing under the laws of each
jurisdiction in which it owns or leases properties, or conducts any
business, so as to require such qualification, other than where the
failure to be so qualified or in good standing would not have a Material
Adverse Effect; and all the outstanding shares of capital stock or other
ownership interests of each subsidiary of the Company have been duly
authorized and validly issued, are fully paid and non-assessable, and are
owned by the Company, directly or indirectly, free and clear of all liens,
encumbrances, security interests and claims;
(h) this Agreement has been duly authorized, executed and delivered
by the Company;
(i) the Company has an authorized capitalization as set forth in the
Prospectus and such authorized capital stock conforms as to legal matters
to the description thereof set forth in the Prospectus, and all of the
outstanding shares of capital stock of the Company have been duly
authorized and validly issued, are fully paid and non-assessable and are
not subject to any preemptive or similar rights; and, except as described
in or expressly contemplated by the Prospectus, there are no outstanding
rights (including, without limitation, preemptive rights), warrants or
options to acquire, or instruments convertible into or exchangeable for,
any shares
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of capital stock or other equity interest in the Company or any of its
subsidiaries, or any contract, commitment, agreement, understanding or
arrangement of any kind relating to the issuance of any capital stock of
the Company or any such subsidiary, any such convertible or exchangeable
securities or any such rights, warrants or options;
(j) the Company Shares have been duly authorized, and, when issued
and delivered to and paid for by the Underwriters in accordance with the
terms of this Agreement, will be duly issued and will be fully paid and
non-assessable and will conform to the description thereof in the
Prospectus; and the issuance of the Company Shares is not subject to any
preemptive or similar rights;
(k) neither the Company nor any of its subsidiaries is, or with the
giving of notice or lapse of time or both would be, in violation of or in
default under its certificate or articles of incorporation or organization
or by-laws or any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which the Company or any of its
subsidiaries is a party or by which it or any of them or any of their
respective properties is bound, except for violations and defaults which
individually and in the aggregate are not material to the Company and its
subsidiaries, taken as a whole; the issue and sale of the Company Shares
hereunder and the performance by the Company of its obligations under this
Agreement and the consummation of the transactions contemplated herein
will not conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument to which
the Company or any of its subsidiaries is a party or by which the Company
or any of its subsidiaries is bound or to which any of the property or
assets of the Company or any of its subsidiaries is subject, nor will any
such action result in any violation of the provisions of the certificate
or articles of incorporation or organization or the by-laws of the Company
or any of its subsidiaries or any applicable law or statute or any order,
rule or regulation of any court or governmental agency or body having
jurisdiction over the Company, its subsidiaries or any of their respective
properties; and no consent, approval, authorization, order, license,
registration or qualification of or with any such court or governmental
agency or body is required for the issue and sale of the Company Shares
hereunder or the consummation by the Company of the transactions
contemplated by this Agreement, except such consents, approvals,
authorizations, orders, licenses, registrations or qualifications as have
been obtained under the Securities Act and as may be required under state
securities or Blue Sky Laws in connection with the purchase and
distribution of the Shares by the Underwriters;
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(l) other than as set forth or contemplated in the Prospectus, there
are no legal or governmental investigations, actions, suits or proceedings
pending or, to the knowledge of the Company, threatened against or
affecting the Company or any of its subsidiaries or any of their
respective properties or to which the Company or any of its subsidiaries
is or may be a party or to which any property of the Company or any of its
subsidiaries is or may be the subject which, if determined adversely to
the Company or any of its subsidiaries, could individually or in the
aggregate have, or reasonably be expected to have, a Material Adverse
Effect, and, to the best of the Company's knowledge, no such proceedings
are threatened or contemplated by governmental authorities or threatened
by others; and there are no statutes, regulations, contracts or other
documents that are required to be described in the Registration Statement
or Prospectus or to be filed as exhibits to the Registration Statement
that are not described or filed as required;
(m) the Company and its subsidiaries have good and marketable title
in fee simple to all items of real property and good and marketable title
to all personal property owned by them, in each case free and clear of all
liens, encumbrances and defects except such as are described or referred
to in the Prospectus or such as do not materially affect the value of such
property and do not interfere with the use made or proposed to be made of
such property by the Company and its subsidiaries; and any real property
and buildings held under lease by the Company and its subsidiaries are
held by them under valid, existing and enforceable leases with such
exceptions as are not material and do not interfere with the use made or
proposed to be made of such property and buildings by the Company or its
subsidiaries;
(n) no relationship, direct or indirect, exists between or among the
Company or any or its subsidiaries on the one hand, and the directors,
officers, stockholders, customers or suppliers of the Company or any of
its subsidiaries on the other hand, which is required by the Securities
Act to be described in the Registration Statement and the Prospectus which
is not so described;
(o) no person has the right to require the Company to register any
securities for offering and sale under the Securities Act by reason of the
filing of the Registration Statement with the Commission or the issue and
sale of the Shares;
(p) the Company is not and, after giving effect to the offering and
sale of the Shares, will not be an "investment company", as such terms are
defined in the Investment Company Act of 1940, as amended (the "Investment
Company Act");
(q) Coopers & Xxxxxxx L.L.P. ("Coopers & Xxxxxxx"), who have
certified certain financial statements of the Company and its
subsidiaries, are independent public accountants as required by the
Securities Act;
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(r) the Company and its subsidiaries have filed all federal, state,
local and foreign tax returns which have been required to be filed and
have paid all taxes shown thereon and all assessments received by them or
any of them to the extent that such taxes have become due and are not
being contested in good faith; and, except as disclosed in the
Registration Statement and the Prospectus, there is no tax deficiency
which has been or might reasonably be expected to be asserted or
threatened against the Company or any subsidiary;
(s) the Company has not taken nor will it take, directly or
indirectly, any action designed to, or that might be reasonably expected
to, cause or result in stabilization or manipulation of the price of the
Common Stock;
(t) since the respective dates as of which information is given in
the Prospectus and in the Registration Statement, the human clinical
trials conducted by the Company or in which the Company has participated
that are described in the Registration Statement and Prospectus, or the
results of which are referred to in the Registration Statement and
Prospectus, and to the Company's knowledge, such studies and tests
conducted on behalf of the Company, were and, if still pending, are being
conducted in accordance with experimental protocols, procedures and
controls pursuant to, where applicable, accepted professional scientific
standards; the descriptions of the results of such studies, tests and
trials contained in the Registration Statement and Prospectus are accurate
and complete in all material respects; and the Company has not received
any notices or correspondence from the United States Food and Drug
Administration ("FDA") or any other governmental agency requiring the
termination, suspension or material modification of any clinical trials
conducted by, or on behalf of, the Company or in which the Company has
participated that are described in the Registration Statement and
Prospectus or the result of which are referred to in the Registration
Statement and Prospectus;
(u) each of the Company and its subsidiaries owns, possesses or has
obtained all licenses, permits, certificates, consents, orders, approvals
and other authorizations from, and has made all declarations and filings
with, all federal, state, local and other governmental authorities
(including foreign regulatory agencies), all self-regulatory organizations
and all courts and other tribunals, domestic or foreign, necessary to own
or lease, as the case may be, and to operate its properties and to carry
on its business as conducted as of the date hereof, except where failure
of the Company or any of its subsidiaries to own, possess or have obtained
such licenses, permits, certificates, consents, orders, approvals or other
authorizations from, and to have made such declarations or filings with,
such entities would not, singly or in the aggregate, have a Material
Adverse Effect, and neither the Company nor any such subsidiary has
received any actual notice of any proceeding relating to revoca-
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tion or modification of any such license, permit, certificate, consent,
order, approval or other authorization, except as described in the
Registration Statement and the Prospectus and except where such revocation
or modification would not have a Material Adverse Effect; and each of the
Company and its subsidiaries is in compliance with all laws and
regulations relating to the conduct of its business as conducted as of the
date hereof, except where failure by the Company or any of its
subsidiaries to be in compliance with such laws or regulations would not,
singly or in the aggregate, have a Material Adverse Effect; the Company is
not in violation of any foreign, state or local law, order, rule,
regulation, writ, injunction or decree of any court or governmental agency
or body including but not limited to, the FDA; all of the descriptions in
the Registration Statement and Prospectus of the legal and governmental
procedures by or before the FDA or any foreign, state or local government
body exercising comparable authority are true, complete and accurate in
all material respects;
(v) the statistical and market-related data included in the
Registration Statement and the Prospectus are based on or derived from
sources which are believed by the Company to be reliable;
(w) except for compensation to be received by the Underwriters under
this Agreement, the Company does not know of any outstanding claims for
services, either in the nature of a finder's fee or origination fee, with
respect to any of the transactions contemplated hereby;
(x) the Company owns or possesses the patents, patent rights,
licenses, inventions, trademarks, service marks, trade names, copyrights
and know-how, including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or
procedures (collectively, the "Intellectual Property"), reasonably
necessary to carry on the business conducted by it, except to the extent
that the failure to own or possess such Intellectual Property would not
have a Material Adverse Effect, and, except as described in the
Registration Statement and the Prospectus, the Company has no knowledge of
infringement of or conflict with asserted rights of others with respect to
any Intellectual Property, except for notices the content of which if
accurate would not have a Material Adverse Effect;
(y) there are no existing or, to the best knowledge of the Company,
threatened labor disputes with the employees of the Company or any of its
subsidiaries which are likely to have a Material Adverse Effect;
(z) the Company and its subsidiaries (i) are in compliance with any
and all applicable foreign, federal, state and local laws and regulations
relating to the protection of human health and safety, the environment or
hazardous or toxic sub-
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stances or wastes, pollutants or contaminants ("Environmental Laws"), (ii)
have received all permits, licenses or other approvals required of them
under applicable Environmental Laws to conduct their respective businesses
and (iii) are in compliance with all terms and conditions of any such
permit, license or approval, except where such noncompliance with
Environmental Laws, failure to receive required permits, licenses or other
approvals or failure to comply with the terms and conditions of such
permits, licenses or approvals would not, singly or in the aggregate, have
a Material Adverse Effect;
(aa) each employee benefit plan, within the meaning of Section 3(3)
of the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), that is maintained, administered or contributed to by the
Company or any of its affiliates for employees or former employees of the
Company and its affiliates has been maintained in all material respects in
compliance with its terms and the requirements of any applicable statutes,
orders, rules and regulations, including but not limited to ERISA and the
Internal Revenue Code of 1986, as amended (the "Code"). No prohibited
transaction, within the meaning of Section 406 of ERISA or Section 4975 of
the Code, has occurred with respect to any such plan excluding
transactions effected pursuant to a statutory or administrative exemption,
except where such prohibited transaction would not have a Material Adverse
Effect. No such plan which is subject to the funding rules of Section 412
of the Code or Section 302 of ERISA, no "accumulated funding deficiency"
as defined in Section 412 of the Code has been incurred, whether or not
waived, and the fair market value of the assets of each such plan
(excluding for these purposes accrued but unpaid contributions) exceeded
the present value of all benefits accrued under such plan determined using
reasonable actuarial assumptions; and
(bb) the Company has delivered to the Representatives written
agreements, substantially in the form set forth as Exhibit A hereto (each,
a "Lock-Up Agreement"), of each of its directors and executive officers
and certain stockholders previously identified by the Representatives,
pursuant to which each has agreed, except as provided therein, not to
sell, offer, agree to sell or otherwise dispose of, directly or
indirectly, any shares of Common Stock, any options, warrants or rights to
purchase Common Stock or any securities convertible into or exchangeable
or exercisable for Common Stock for a period of 90 days after the date of
this Agreement, without the prior written consent of X.X. Xxxxxx
Securities Inc.
(B) Each of the Selling Shareholders severally represents and
warrants to, and agrees with, each of the Underwriters and the Company that:
(a) all consents, approvals, authorizations and orders necessary for
the execution and delivery by such Selling Shareholder of this Agreement
and the Power
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of Attorney (the "Power of Attorney") and the Custody Agreement (the
"Custody Agreement") hereinafter referred to, and for the sale and
delivery of the Selling Shareholder Shares, have been obtained; and such
Selling Shareholder has full right, power and authority to enter into this
Agreement, the Power of Attorney and the Custody Agreement and to sell,
assign, transfer and deliver the Selling Shareholder Shares; this
Agreement, the Power of Attorney and the Custody Agreement have each been
duly executed and delivered, and to the extent necessary authorized, by or
on behalf of such Selling Shareholder;
(b) the sale of the Selling Shareholder Shares and the compliance by
such Selling Shareholder with all of the provisions of this Agreement, the
Power of Attorney and the Custody Agreement and the consummation of the
transactions herein and therein contemplated will not conflict with or
result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any statute, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which such
Selling Shareholder is a party or by which such Selling Shareholder is
bound or to which any of the property or assets of such Selling
Shareholder is subject, nor, to the best knowledge of such Selling
Shareholder, will such action result in any violation of any statute or
any order, rule or regulation of any court or governmental agency or body
having jurisdiction over such Selling Shareholder or the property of such
Selling Shareholder;
(c) such Selling Shareholder has good and valid title to the Selling
Shareholder Shares to be sold at the Closing Date by such Selling
Shareholder hereunder, free and clear of all liens, encumbrances, equities
or adverse claims; such Selling Shareholder will have, immediately prior
to the Closing Date, good and valid title to the Selling Shareholder
Shares to be sold at the Closing Date by such Selling Shareholder, free
and clear of all liens, encumbrances, equities or adverse claims; and,
upon delivery of the certificates representing such Selling Shareholder
Shares and payment therefor pursuant hereto, good and valid title to such
Selling Shareholder Shares, free and clear of all liens, encumbrances,
equities or adverse claims, will pass to the several Underwriters;
(d) such Selling Shareholder has not taken and will not take,
directly or indirectly, any action which is designed to or which has
constituted or which might reasonably be expected to cause or result in
stabilization or manipulation of the price of any security of the Company
to facilitate the sale or resale of the Selling Shareholder Shares; and
(e) to the best knowledge of the Selling Shareholders, the
Registration Statement and the Prospectus (as amended or supplemented)
comply or will comply, as the case may be, in all material respects with
the Securities Act and do not and
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will not, as of the applicable effective date of the Registration
Statement and any amendment thereto and as of the date of the Prospectus
and any amendment or supplement thereto, contain any untrue statement of
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading, and
the Prospectus, as amended or supplemented, if applicable, at the Closing
Date will not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in light
of the circumstances under which they were made, not misleading; except
that the foregoing representations and warranties shall not apply to
statements or omissions in the Registration Statement or the Prospectus
made in reliance upon and in conformity with information relating to any
Underwriter furnished to the Company in writing by such Underwriter
through the Representatives expressly for use therein.
Each of the Selling Shareholders represents and warrants that
certificates in negotiable form representing all of the Selling Shareholder
Shares hereunder have been placed in custody under a Custody Agreement relating
to such Selling Shareholder Shares, in the form heretofore furnished to you,
duly executed and delivered by such Selling Shareholder to the Company, as
custodian (the "Custodian"), and that such Selling Shareholder has duly executed
and delivered Powers of Attorney, in the form heretofore furnished to you,
appointing Xxxxx-Xxxxxx Xxxxxx Plais and X.X. Xxxxxxx, or either of them, as
such Selling Shareholder's attorneys-in-fact (the "Attorneys-in-Fact" or either
one of them the "Attorney-in-Fact") with authority to execute and deliver this
Agreement on behalf of such Selling Shareholder, to determine the purchase price
to be paid by the Underwriters to the Selling Shareholders as provided herein,
to authorize the delivery of the Selling Shareholder Shares to be sold by such
Selling Shareholder hereunder and otherwise to act on behalf of such Selling
Shareholder in connection with the transactions contemplated by this Agreement
and the Custody Agreement.
Each of the Selling Shareholders specifically agrees that the
Selling Shareholder Shares represented by the certificates held in custody for
such Selling Shareholder under the Custody Agreement are subject to the
interests of the Underwriters hereunder, and that the arrangements made by such
Selling Shareholder for such custody, and the appointment by such Selling
Shareholder of the Attorneys-in-Fact by the Power of Attorney, are to that
extent irrevocable. Each of the Selling Shareholders specifically agrees that
the obligations of such Selling Shareholder hereunder shall not be terminated by
operation of law, whether by the death or incapacity of any individual Selling
Shareholder, or, in the case of an estate or trust, by the death or incapacity
of any executor or trustee or the termination of such estate or trust, or in the
case of a partnership or corporation, by the dissolution of such partnership or
corporation, or by the occurrence of any other event. If any individual Selling
Shareholder or any such executor or trustee should die or become incapacitated,
or if any such estate or trust should be terminated, or if any such partnership
or
13
-13-
corporation should be dissolved, or if any other such event should occur, before
the delivery of the Selling Shareholder Shares by it hereunder, certificates
representing such Selling Shareholder Shares shall be delivered by or on behalf
of such Selling Shareholder in accordance with the terms and conditions of this
Agreement and the Custody Agreement, and actions taken by the Attorneys-in-Fact
pursuant to the Powers of Attorney shall be as valid as if such death,
incapacity, termination, dissolution or other event had not occurred, regardless
of whether or not the Custodian, the Attorneys-in-Fact, or any of them, shall
have received notice of such death, incapacity, termination, dissolution or
other event.
5. (A) The Company covenants and agrees with each of the several
Underwriters as follows:
(a) to use its best efforts to cause the Registration Statement to
become effective at the earliest possible time and, if required, to file
the final Prospectus with the Commission within the time periods specified
by Rule 424(b) and Rule 430A under the Securities Act and to file promptly
all reports and any definitive proxy or information statements required to
be filed by the Company with the Commission pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the
Prospectus and for so long as the delivery of a prospectus is required in
connection with the offering or sale of the Shares; and to furnish copies
of the Prospectus to the Underwriters in New York City prior to 10:00
a.m., New York City time, on the Business Day next succeeding the date of
this Agreement in such quantities as the Representatives may reasonably
request;
(b) to deliver, at the expense of the Company, to the
Representatives four signed copies of the Registration Statement (as
originally filed) and each amendment thereto, in each case including
exhibits and documents incorporated by reference therein, and to each
other Underwriter a conformed copy of the Registration Statement (as
originally filed) and each amendment thereto, in each case without
exhibits but including the documents incorporated by reference therein
and, during the Specified Period (as defined below), to each of the
Underwriters as many copies of the Prospectus (including all amendments
and supplements thereto) and documents incorporated by reference therein
as the Representatives may reasonably request;
(c) prior to the expiration of the Specified Period, before filing
any amendment or supplement to the Registration Statement or the
Prospectus, whether before or after the time the Registration Statement
becomes effective, to furnish to the Representatives a copy of the
proposed amendment or supplement for review and not to file any such
proposed amendment or supplement to which the Representatives reasonably
object;
14
-14-
(d) to advise the Representatives promptly, and to confirm such
advice in writing, (i) when the Registration Statement has become
effective, (ii) when any amendment to the Registration Statement has been
filed or becomes effective, (iii) when any supplement to the Prospectus or
any amended Prospectus has been filed and to furnish the Representatives
with copies thereof, (iv) of any request by the Commission for any
amendment to the Registration Statement or any amendment or supplement to
the Prospectus or for any additional information, (v) of the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or of any order preventing or suspending the use of
any preliminary prospectus or the Prospectus or the initiation or
threatening of any proceeding for that purpose, (vi) of the occurrence of
any event, within the Specified Period, as a result of which the
Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact necessary
in order to make the statements therein, in the light of the circumstances
when the Prospectus is delivered to a purchaser, not misleading, and (vii)
of the receipt by the Company of any notification with respect to any
suspension of the qualification of the Shares for offer and sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose; and to use its best efforts to prevent the issuance of any such
stop order, or of any order preventing or suspending the use of any
preliminary prospectus or the Prospectus, or of any order suspending any
such qualification of the shares, or notification of any such order
thereof and, if issued, to obtain as soon as possible the withdrawal
thereof;
(e) if, during such period of time after the first date of the
public offering of the Shares, in the opinion of counsel for the
Underwriters a prospectus relating to the Shares is required by law to be
delivered in connection with sales by the Underwriters or any dealer (such
period during which a prospectus relating to the Shares is required by law
to be so delivered being the "Specified Period"), any event shall occur as
a result of which it is necessary to amend or supplement the Prospectus in
order to make the statements therein, in the light of the circumstances
when the Prospectus is delivered to a purchaser, not misleading, or if it
is necessary to amend or supplement the Prospectus to comply with law,
forthwith to prepare and furnish, at the expense of the Company, to the
Underwriters and to the dealers (whose names and addresses the
Representatives will furnish to the Company) to which Shares may have been
sold by the Representatives on behalf of the Underwriters and to any other
dealers upon request, such amendments or supplements to the Prospectus as
may be necessary so that the statements in the Prospectus as so amended or
supplemented will not, in the light of the circumstances when the
Prospectus is delivered to a purchaser, be misleading or so that the
Prospectus will comply with law;
15
-15-
(f) to endeavor to qualify the Shares for offer and sale under the
securities or Blue Sky laws of such jurisdictions as the Representatives
shall reasonably request and to continue such qualification in effect so
long as reasonably required for distribution of the Shares; provided that
the Company shall not be required to file a general consent to service of
process in any jurisdiction;
(g) to make generally available to its security holders and to the
Representatives as soon as practicable an earnings statement covering a
period of at least twelve months beginning with the first fiscal quarter
of the Company occurring after the effective date of the Registration
Statement, which shall satisfy the provisions of Section 11(a) of the
Securities Act and Rule 158 of the Commission promulgated thereunder;
(h) during the period of three years after the date of this
Agreement, to furnish to the Representatives copies of all reports or
other communications (financial or other) furnished to holders of the
Shares, and copies of any reports and financial statements furnished to or
filed with the Commission or any national securities exchange;
(i) for a period of 90 days after the date of the initial public
offering of the Shares not to (i) offer, pledge, announce the intention to
sell, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or
warrant to purchase or otherwise transfer or dispose of, directly or
indirectly, any shares of Common Stock of the Company or any securities
convertible into or exercisable or exchangeable for Common Stock of the
Company or (ii) enter into any swap or other agreement that transfers, in
whole or in part, any of the economic consequences of ownership of Common
Stock of the Company, whether any such transaction described in clause (i)
or (ii) above is to be settled by delivery of Common Stock of the Company
or such other securities, in cash or otherwise without the prior written
consent of the Representatives, other than the Shares to be sold hereunder
and any shares of Common Stock of the Company issued upon the exercise of
options granted under existing employee stock option plans and the
issuance under such plans of options to purchase shares of Common Stock of
the Company;
(j) to use the net proceeds received by the Company from the sale of
the Shares pursuant to this Agreement in the manner specified in the
Prospectus under the caption "Use of Proceeds";
(k) to list, subject to notice of issuance, the Shares to be issued
and sold by the Company hereunder on the New York Stock Exchange (the
"Exchange"); and
16
-16-
(l) whether or not the transactions contemplated in this Agreement
are consummated or this Agreement is terminated, to pay or cause to be
paid all costs and expenses incident to the performance of its obligations
hereunder, including without limiting the generality of the foregoing, all
costs and expenses (i) incident to the preparation, registration,
execution, issuance and delivery of the Shares, (ii) incident to the
preparation, printing and filing under the Securities Act of the
Registration Statement, the Prospectus and any preliminary prospectus
(including in each case all exhibits, amendments and supplements thereto),
(iii) incurred in connection with the registration or qualification of the
Shares under the laws of such jurisdictions as the Representatives may
designate (including fees of counsel for the Underwriters and its
disbursements), (iv) in connection with the listing of the Company Shares
on the Exchange, (v) related to the filing with, and clearance of the
offering by, the National Association of Securities Dealers, Inc., (vi) in
connection with the printing of this Agreement, any Blue Sky Memoranda and
the furnishing to the Underwriters and dealers of copies of the
Registration Statement and the Prospectus, including mailing and shipping,
as herein provided, (vii) any expenses incurred by the Company in
connection with a "road show" presentation to potential investors, (viii)
the cost of preparing stock certificates and (ix) the cost and charges of
any transfer agent and any registrar; provided the Selling Shareholders
may pay certain of the costs and expenses set forth in this paragraph (l);
provided, however, nothing contained in this paragraph (l) will relieve
the Company's obligations to pay or cause to be paid the costs and
expenses set forth herein in full in compliance herewith.
(B) Each of the Selling Shareholders covenants and agrees with each
of the several Underwriters as follows:
(a) for a period of 90 days after the date of the initial public
offering of the Shares not to (i) offer, pledge, announce the intention to
sell, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or
warrant to purchase or otherwise transfer or dispose of, directly or
indirectly, any shares of Common Stock of the Company or any securities
convertible into or exercisable or exchangeable for Common Stock of the
Company or (ii) enter into any swap or other agreement that transfers, in
whole or in part, any of the economic consequences of ownership of Common
Stock of the Company, whether any such transaction described in clause (i)
or (ii) above is to be settled by delivery of Common Stock of the Company
or such other securities, in cash or otherwise or (iii) make any demand
for or exercise any right with respect to the registration of any shares
of Common Stock of the Company or any security convertible into or
exercisable or exchangeable for Common Stock of the Company
17
-17-
without the prior written consent of the Representatives, in each case
other than the Shares to be sold by such Selling Shareholder hereunder;
and
(b) to deliver to the Representatives prior to or at the Closing
Date a properly completed and executed United States Treasury Department
Form W-9 (or other applicable form or statement specified by the Treasury
Department regulations in lieu thereof) in order to facilitate the
Underwriters' documentation of their compliance with the reporting and
withholding provisions of the Tax Equity and Fiscal Responsibility Act of
1982 with respect to the transactions herein contemplated.
6. The several obligations of the Underwriters hereunder to purchase
the Shares on the Closing Date are subject to the performance by the Company and
each of the Selling Shareholders of their respective obligations hereunder and
to the following additional conditions:
(a) the Registration Statement shall have become effective (or if a
post-effective amendment is required to be filed under the Securities Act,
such post-effective amendment shall have become effective) not later than
5:00 P.M., New York City time, on the date hereof; and no stop order
suspending the effectiveness of the Registration Statement or any
post-effective amendment shall be in effect, and no proceedings for such
purpose shall be pending before or threatened by the Commission; the
Prospectus shall have been filed with the Commission pursuant to Rule
424(b) within the applicable time period prescribed for such filing by the
rules and regulations under the Securities Act and in accordance with
Section 5(a) hereof; and all requests for additional information shall
have been complied with to the satisfaction of the Representatives;
(b) the representations and warranties of the Company and the
Selling Shareholders contained herein are true and correct on and as of
the Closing Date as the case may be, as if made on and as of the Closing
Date, and each of the Company and the Selling Shareholders shall have
complied with all agreements and all conditions on its part to be
performed or satisfied hereunder at or prior to the Closing Date;
(c) since the respective dates as of which information is given in
the Prospectus, there shall not have been any change in the capital stock
or long-term debt of the Company or any of its subsidiaries or any
Material Adverse Change, or any development involving a prospective
Material Adverse Change, otherwise than as set forth or contemplated in
the Prospectus, the effect of which in the judgment of the Representatives
makes it impracticable or inadvisable to proceed with the public offering
or the delivery of the Shares on the Closing Date on the terms and in the
manner contemplated in the Prospectus; and neither the Company nor any of
its sub-
18
-18-
sidiaries has sustained since the date of the latest audited financial
statements included or incorporated by reference in the Prospectus any
material loss or interference with its business from fire, explosion,
flood or other calamity, whether or not covered by insurance, or from any
labor dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Prospectus;
(d) the Representatives shall have received on and as of the Closing
Date (1) a certificate of an executive officer of the Company, with
specific knowledge about the Company's financial matters, satisfactory to
the Representatives to the effect set forth in subsections (a) through (c)
(with respect to the respective representations, warranties, agreements
and conditions of the Company) of this Section and to the further effect
that there has not occurred any Material Adverse Change, or any
development involving a prospective Material Adverse Change, from that set
forth or contemplated in the Registration Statement and (2) a certificate
of the Selling Shareholders, satisfactory to the Representatives, to the
effect set forth in subsection (b) of this Section 6 (with respect to the
respective representations, warranties, agreements and conditions of the
Selling Shareholders);
(e) Xxxxxxxxx, Daily, Xxxxxxx & Xxxxx, Indiana counsel to the
Company, shall have furnished to the Representatives its written opinion,
dated the Closing Date, in form and substance satisfactory to the
Representatives, to the effect that:
(i) the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
State of Indiana;
(ii) the Company has the corporate power and authority to own,
lease and operate its properties and to conduct its business as
described in the Prospectus;
(iii) the authorized, issued and outstanding shares of capital
stock of the Company have been duly and validly issued and are fully
paid and nonassessable, and, to our knowledge, have not been issued
in violation of or subject to any preemptive or similar right;
(iv) the Company Shares to be issued by the Company pursuant
to the terms of this Agreement have been duly authorized and, upon
issuance and delivery against payment therefor in accordance with
the terms thereof, will be duly and validly issued and fully paid
and nonassessable, and will not have been issued in violation of or
subject to any preemptive or similar right;
19
-19-
(v) the Company has the corporate power and authority to
enter into this Agreement and to issue, sell and deliver to the
Underwriters the Company Shares to be issued and sold by it
thereunder;
(vi) this Agreement has been duly authorized by all necessary
corporate action on the part of the Company and has been duly
executed and delivered by the Company;
(vii) the Company is not, and with the giving of notice or
lapse of time or both will not be, in violation of, or in default
under, its amended and restated articles of organization (the
"Articles") or by-laws; the issue and sale of the Shares being
issued and sold by the Company hereunder on the Closing Date and the
performance by the Company of its obligations under this Agreement
and the consummation of the transactions contemplated herein will
not result in any violation of the provisions of Articles or the
by-laws of the Company; and
(viii) the statements under "Description of Capital Stock --
Common Stock" and "Description of Capital Stock -- Preferred Stock"
and in the Registration Statement in Item 15, insofar as such
statements constitute a summary of the terms of the capital stock of
the Company, legal matters, documents or proceedings referred to
therein, fairly present the information called for with respect to
such terms, legal matters, documents or proceedings;
(f) Xxxxxxx X. Xxxxx, Xx., Vice President, General Counsel and
Secretary of the Company, shall have furnished to the Representatives
his written opinion, dated the Closing Date, in form and substance
satisfactory to the Representatives, to the effect that:
(i) the Company has been duly qualified as a foreign
corporation for the transaction of business and is in good standing
under the laws of Tennessee, which is the only foreign jurisdiction
in which it owns or leases properties, or conducts any business, so
as to require such qualification, other than where the failure to be
so qualified or in good standing would not have a Material Adverse
Effect;
(ii) each of the Company's subsidiaries has been duly
incorporated or formed, as the case may be, and is validly existing
as a corporation, partnership or limited liability company, as the
case may be, under the laws of its jurisdiction of incorporation or
formation, as the case may be, with power and authority (corporate
and other) to own its properties and conduct its
20
-20-
business as described in the Prospectus and has been duly qualified
as a foreign corporation, partnership or limited liability company,
as the case may be, for the transaction of business and is in good
standing under the laws of each other jurisdiction in which it owns
or leases properties, or conducts any business, so as to require
such qualification, other than where the failure to be so qualified
and in good standing would not have a Material Adverse Effect; and
all of the outstanding shares of capital stock or other ownership
interests of each subsidiary listed on Schedule III hereto have been
duly and validly authorized and issued, are fully paid and
non-assessable, and are owned directly or indirectly by the Company,
free and clear of all liens, encumbrances, equities or claims;
(iii) other than as set forth or contemplated in the
Prospectus, there are no legal or governmental investigations,
actions, suits or proceedings pending or, to the best of such
counsel's knowledge, threatened against or affecting the Company or
any of its subsidiaries or any of their respective properties or to
which the Company or any of its subsidiaries is or may be a party or
to which any property of the Company or its subsidiaries is or may
be the subject which, if determined adversely to the Company or any
of its subsidiaries, could individually or in the aggregate have, or
reasonably be expected to have, a Material Adverse Effect; to the
best of such counsel's knowledge, no such proceedings are threatened
or contemplated by governmental authorities or threatened by others;
and such counsel does not, to the best of his knowledge, know of any
statutes, regulations, contracts or other documents that are
required to be described in the Registration Statement or Prospectus
or to be filed as exhibits to the Registration Statement that are
not described or filed as required;
(iv) each Selling Shareholder is the record, beneficial and
lawful owner of all the Shares to be sold by such Selling
Shareholder;
(v) the statements under "Description of Capital Stock --
Shares Eligible for Future Sale" and "Business -- Legal
Proceedings", insofar as such statements constitute a summary of the
terms of the capital stock of the Company, legal matters, documents
or proceedings referred to therein, fairly present the information
called for with respect to such terms, legal matters, documents or
proceedings;
(vi) neither the Company nor any of its subsidiaries is, or
with the giving of notice or lapse of time or both would be, in
violation of, or in default under, its certificate or articles of
incorporation or organization or by-laws or any indenture, mortgage,
deed of trust, loan agreement or other
21
-21-
agreement or instrument known to such counsel to which the Company
or any of its subsidiaries is a party or by which it or any of them
or any of their respective properties is bound, except for
violations and defaults which individually and in the aggregate are
not material to the Company and its subsidiaries, taken as a whole;
the issue and sale of the Shares being issued and sold by the
Company hereunder on the Closing Date and the performance by the
Company of its obligations under this Agreement and the consummation
of the transactions contemplated herein will not conflict with or
result in a breach of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument known to such
counsel to which the Company or any of its subsidiaries is a party
or by which the Company or any of its subsidiaries is bound or to
which any of the property or assets of the Company or any of its
subsidiaries is subject, nor will any such action result in any
violation of the provisions of the Articles or the by-laws of the
Company or any applicable law or statute or any order, rule or
regulation of any court or governmental agency or body having
jurisdiction over the Company, its subsidiaries or any of their
respective properties;
(vii) no consent, approval, authorization, order, license,
registration or qualification of or with any court or governmental
agency or body is required for the issue and sale of the Shares
being issued and sold by the Company hereunder or the consummation
of the other transactions contemplated by this Agreement, except
such consents, approvals, authorizations, orders, licenses,
registrations or qualifications as have been obtained under the
Securities Act and as may be required under state securities or Blue
Sky laws in connection with the purchase and distribution of the
Shares by the Underwriters;
(viii) no facts have come to the attention of such counsel
that lead such counsel to believe that the Registration Statement
and the prospectus included therein at the time the Registration
Statement became effective included any untrue statement of a
material fact or omitted to state any material fact necessary to
make the statements therein, in light of the circumstances under
which they were made, not misleading, or that the Prospectus, at the
date thereof or the Closing Date, includes any untrue statement of a
material fact or omits to state any material fact necessary to make
the statements therein, in light of the circumstances under which
they were made, not misleading (it being understood that such
counsel need express no view with respect to the financial,
statistical and accounting information contained or incorporated by
reference in the Registration Statement or the Prospectus), or
22
-22-
the documents incorporated by reference in the Prospectus or any
further amendment or supplement thereto made by the Company prior to
the Closing (other than the financial statements and related
schedules therein, as to which such counsel need express no
opinion), when such documents became effective or were so filed, as
the case may be, contained, in the case of a registration statement
which became effective under the Securities Act, an untrue statement
of a material fact or omitted to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading, or, in the case of other documents which were filed
under the Exchange Act with the Commission, an untrue statement of a
material fact or omitted to state a material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made when such documents were so filed, not
misleading;
(ix) to the best of such counsel's knowledge, each of the
Company and its subsidiaries owns, possesses or has obtained all
licenses, permits, certificates, consents, orders, approvals and
other authorizations from, and has made all declarations and filings
with, all federal, state, local and other governmental authorities
(including foreign regulatory agencies), all self-regulatory
organizations and all courts and other tribunals, domestic or
foreign, necessary to own or lease, as the case may be, and to
operate its properties and to carry on its business as conducted as
of the date hereof, and neither the Company nor any such subsidiary
has received any actual notice of any proceeding relating to
revocation or modification of any such license, permit, certificate,
consent, order, approval or other authorization, except as described
in the Registration Statement and the Prospectus; and each of the
Company and its subsidiaries is in compliance with all laws and
regulations relating to the conduct of its business as conducted as
of the date of the Prospectus;
(x) each of the Company and its subsidiaries is in compliance
with all Environmental Laws, except, in each case, where
noncompliance, individually or in the aggregate, would not have a
Material Adverse Effect.
In rendering such opinions, such counsel may rely (A) as to matters
involving the application of laws other than the laws of the United States
and the State of Tennessee, to the extent such counsel deems proper and to
the extent specified in such opinion, if at all, upon an opinion or
opinions (in form and substance reasonably satisfactory to the
Underwriters' counsel) of other counsel reasonably acceptable to the
Underwriters' counsel, familiar with the applicable laws including, as to
matters of Indiana law, Xxxxxxxxx, Daily, Xxxxxxx and Xxxxx; and (B) as to
matters of
23
-23-
fact, to the extent such counsel deems proper, on certificates of
responsible officers of the Company and certificates or other written
statements of officials of jurisdictions having custody of documents
respecting the corporate existence or good standing of the Company. With
respect to the matters to be covered in subparagraph (v) above counsel
may state their opinion and belief is based upon their participation in
the preparation of the Registration Statement and the Prospectus and any
amendment or supplement thereto and review and discussion of the contents
thereof but is without independent check or verification except as
specified;
(g) Shearman & Sterling, special counsel for the Company, shall have
furnished to the Representatives their written opinion, dated the Closing
Date, in form and substance satisfactory to the Representatives, to the
effect that:
(i) this Agreement has been duly authorized, executed and
delivered by the Company;
(ii) the Shares to be issued and sold by the Company hereunder
have been duly authorized, and when delivered to and paid for the
Underwriters in accordance with the terms of this Agreement, will be
validly issued, fully paid and non-assessable and, to such counsel's
knowledge, the issuance of such Shares is not subject to any
preemptive or similar rights;
(iii) no consent, approval, authorization, order, license,
registration or qualification of or with any court or governmental
agency or body is required for the issue and sale of the Shares
being issued and sold by the Company hereunder or the consummation
of the other transactions contemplated by this Agreement, except
such consents, approvals, authorizations, orders, licenses,
registrations or qualifications as have been obtained under the
Securities Act, the rules and regulations of the National
Association of Securities Dealers, Inc. and of the Exchange and as
may be required under state securities or Blue Sky laws in
connection with the purchase and distribution of the Shares by the
Underwriters;
(iv) the Company is not and, after giving effect to the
offering and sale of the Shares, will not be an "investment company"
or entity "controlled" by an "investment company", as such terms are
defined in the Investment Company Act;
(v) the documents incorporated by reference in the Prospectus
or any further amendment or supplement thereto made by the Company
prior to the Closing Date (other than the financial statements and
related schedules therein, as to which such counsel need express no
opinion), when they be-
24
-24-
came effective or were filed with the Commission, as the case may
be, complied as to form in all material respects with the
requirements of the Securities Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission
thereunder;
(vi) assuming the purchase and sale of the Shares occurs in
the State of New York and assuming that certificated securities in
registered form evidencing the Selling Shareholder Shares will be
delivered by the Selling Shareholders directly to the Underwriters,
each of the Underwriters which is a "protected purchaser" as such
term is used in the Uniform Commercial Code, Article 8, as in effect
in the State of New York ("NYUCC Article 8") will upon payment for
the Selling Shareholder Shares acquire its interest in the Selling
Shareholder Shares free of any "adverse claim" as such term is used
in NYUCC Article 8; and
(vii) no registration under the Securities Act was required in
connection with the issuance of an aggregate of 2,806,080 shares of
Common Stock, which together with other consideration, were issued
in exchange for beneficial ownership of 3,337,272 shares of Common
Stock held by Sofyc, S.A., a former personal holding company of the
Selling Shareholders pursuant to a stock exchange agreement dated
as of January 22, 1998 among the Company and the Selling
Shareholders.
In rendering such opinions, such counsel may rely (A) as to matters
involving the application of laws other than the laws of the United States
and the State of New York, to the extent such counsel deems proper and to
the extent specified in such opinion, if at all, upon an opinion or
opinions (in form and substance reasonably satisfactory to the
Underwriters' counsel) of other counsel reasonably acceptable to the
Underwriters' counsel, including, as to matters of Indiana law, Xxxxxxxxx,
Daily, Xxxxxxx and Xxxxx, familiar with the applicable laws; and (B) as to
matters of fact, to the extent such counsel deems proper, on certificates
of responsible officers of the Company and certificates or other written
statements of officials of jurisdictions having custody of documents
respecting the corporate existence or good standing of the Company. The
opinion of such counsel for the Company shall state that the opinion of
any such other counsel upon which such counsel relied is in form
satisfactory to such counsel and, in such counsel's opinion, the
Underwriters and they are justified in relying thereon.
In addition, such counsel shall state in a separate letter to be
addressed to the Representatives that: (i) the Registration Statement has
been declared effective under the Securities Act and, to the best of such
counsel's knowledge, no stop order or proceedings with respect thereto are
pending or threatened under the Securities Act;
25
-25-
(ii) the Registration Statement and Prospectus or any further amendment or
supplement thereto made by the Company prior to the Closing Date (other
than the financial statements and related schedules therein, as to which
such counsel need express no opinion), when they became effective or were
filed with the Commission, as the case may be, complied as to form in all
material respects with the requirements of the Securities Act or the
Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder; and (iii) they have participated in conferences
with directors, officers and other representatives of the Company,
representatives of the independent public accountants for the Company, the
Selling Shareholders and counsel for the Selling Shareholders, the
Representatives and counsel for the Underwriters, at which conferences the
contents of the Registration Statement, the Prospectus and related matters
were discussed, and, although such counsel have not independently verified
and are not passing upon and assume no responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement or the Prospectus (except to the extent specified elsewhere in
such letter or with reference to such counsel), no facts have come to the
attention of such counsel that lead such counsel to believe that the
Registration Statement and the prospectus included therein at the time the
Registration Statement became effective included any untrue statement of a
material fact or omitted to state any material fact necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading or that the Prospectus, at the date thereof or the
Closing Date, includes any untrue statement of a material fact or omits to
state any material fact necessary to make the statements therein, in light
of the circumstances under which they were made, not misleading (it being
understood that such counsel need express no view with respect to the
financial, statistical and accounting information contained or
incorporated by reference in the Registration Statement or the
Prospectus).
The opinions and letter of Shearman & Sterling described above shall
be rendered to the Underwriters at the request of the Company and shall so
state therein;
(h) Xxxxxxxx & Associes, counsel for the Selling Shareholders, shall
have furnished to the Representatives their written opinion, dated the
Closing Date, in form and substance satisfactory to the Representatives,
to the effect that:
(i) this Agreement has been duly executed and delivered by or
on behalf of each of the Selling Shareholders;
(ii) a Power of Attorney and a Custody Agreement have been
duly executed and delivered by, or on behalf of, each Selling
Shareholder and constitute valid and binding agreements of each
Selling Shareholder in accordance with their terms;
26
-26-
(iii) on the basis that (i) each Selling Shareholder has valid
and marketable title to all of the Shares to be sold by such Selling
Shareholder pursuant to the laws of the State of Indiana and (ii)
upon delivery of and payment for such Shares in accordance with
the terms of this Agreement, the Underwriters will acquire valid and
marketable title to such Shares pursuant to the laws of the State of
New York, governing the Agreement, and the State of Indiana, we have
no knowledge of any matter indicative that any defect in such title.
Such counsel is not aware of any mortgage, pledge, security
interest, lien, claim, other encumbrance, restriction on
transferability or any adverse claim encumbering the Selling
Shareholder Shares, other than as may arise pursuant to this
Agreement; and
(iv) the sale of the Shares to be sold by the Selling
Shareholders and the execution and delivery by each Selling
Shareholder of, and the performance by such Selling Shareholder of
its obligations under, this Agreement, and the consummation of the
transactions contemplated herein, (i) to the extent necessary, have
been duly authorized on the part of each of the Selling
Shareholders, and (ii) to the best of such counsel's knowledge, will
not conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other material agreement
or instrument to which any Selling Shareholder is a party or by
which any Selling Shareholder is bound or to which any of the
property or assets of any Selling Shareholder is subject, nor will
any such action result in any violation of any applicable law or
statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over such Selling
Shareholder or any of such Selling Shareholder's properties; and no
consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or
body is required for the sale of the Shares by the Selling
Shareholder or the consummation by the Selling Shareholders of the
transactions contemplated by this Agreement, except such consents,
approvals, authorizations, registrations or qualifications as have
been obtained under the Securities Act and as may be required under
state securities or Blue Sky laws in connection with the purchase
and distribution of the Shares by the Underwriters.
In rendering such opinions, such counsel may rely as to matters
involving the application of laws other than the laws of France, to the
extent such counsel deems proper and to the extent specified in such
opinion, if at all, upon an opinion or opinions (in form and substance
reasonably satisfactory to Underwriters' counsel) of other counsel
reasonably acceptable to the Underwriters' counsel, familiar with the
applicable laws. The opinion of such counsel for the Selling Shareholders
shall state
27
-27-
that the opinion of any such other counsel is in form satisfactory to
such counsel, and in such counsel's opinion, the Underwriters and they
are justified in relying thereon;
(i) Xxxxxx Xxxxxxxx LLP, special litigation counsel for the Company,
shall have furnished to the Representatives their written opinion, dated
the Closing Date in form and substance satisfactory to the
Representatives, to the effect that the statements set forth under "Risk
Factors - Risk of Orthopedic Bone Screw Litigation" and "Business-Legal
Proceedings" (together, the "Orthopedic Bone Screw Litigation
Disclosure"), insofar as such statements constitute a summary of the legal
matters, documents or proceedings referred to therein, fairly present the
information called for with respect to such legal matters, documents and
proceedings; the Orthopedic Bone Screw Litigation Disclosure included in
the Registration Statement at the time it became effective did not contain
any untrue statement of material fact or omit to state a material fact
required to be stated therein or necessary to make such statements not
misleading; and the Orthopedic Bone Screw Litigation Disclosure included
in the Prospectus, as amended or supplemented, if applicable, does not
contain any untrue statement of a material fact or omit to state a
material fact necessary in order to make such statements, in light of the
circumstances in which they were made, not misleading;
(j) Woodward, Emhardt, Xxxxxxxx, Xxxxxxxx & XxXxxx, special
intellectual property counsel for the Company, shall have furnished to the
Representatives their written opinion, dated the Closing Date, to the
effect that the Company and its subsidiaries own the entire right, title
and interest in and to any and all Intellectual Property used in the
Company's or any such subsidiary's business or licensed by the Company or
its subsidiaries for use by others; any such items licensed to the Company
or its subsidiaries by other parties have been licensed pursuant to a
valid and enforceable license agreement and such use is in conformity with
the license agreement; and to the best of such Counsel's knowledge, other
than set forth or contemplated in the Prospectus, there are no pending or
threatened proceedings or litigation affecting, challenging or with
respect to the validity or otherwise of such patents, trademarks, trade
names or copyrights, or any license for use of such items (whether by or
to the Company);
(k) King & Spalding, regulatory counsel for the Company, shall have
furnished to the Representatives their written opinion, dated the Closing
Date, in form and substance satisfactory to the Representatives, to the
effect that the statements in the Prospectus and the Registration
Statement under "Risk Factors--Uncertainty of Regulatory Clearances;
Regulatory Compliance" and "Business--Government Regulation" insofar as
such statements purport to summarize applicable
28
-28-
provisions of the Federal Food, Drug and Cosmetic Act and the regulations
promulgated thereunder, are correct summaries in all material respects of
the provisions purported to be summarized;
(l) on the effective date of the Registration Statement and the
effective date of the most recently filed post-effective amendment to the
Registration Statement and also on the Closing Date, Coopers & Xxxxxxx
shall have furnished to you letters, dated the respective dates of
delivery thereof, in form and substance satisfactory to you, containing
statements and information of the type customarily included in
accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained in the
Registration Statement and the Prospectus or incorporated therein by
reference;
(m) the Representatives shall have received on and as of the Closing
Date an opinion of Xxxxxx Xxxxxx & Xxxxxxx, counsel to the Underwriters,
with respect to the due authorization and valid issuance of the Company
Shares, the Registration Statement, the Prospectus and other related
matters as the Representatives may reasonably request, and such counsel
shall have received such papers and information as they may reasonably
request to enable them to pass upon such matters;
(n) the Shares to be delivered on the Closing Date shall have been
approved for listing on the New York Stock Exchange, subject, in the case
of the Company Shares, to official notice of issuance;
(o) on or prior to the Closing Date, the Company shall have
furnished to the Representatives such further certificates and documents
as the Representatives shall reasonably request; and
(p) the Lock-Up Agreements between you and certain stockholders,
officers and directors of the Company relating to sales and certain other
dispositions of shares of Common Stock of the Company or certain other
securities, delivered to you on or before the date hereof, shall be in
full force and effect on the Closing Date.
7. The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange
Act, from and against any and all losses, claims, damages and liabilities
(including, without limitation, the legal fees and other expenses incurred in
connection with any suit, action or proceeding or any claim asserted) caused by
any untrue statement or alleged untrue statement of a material fact contained in
the Registration Statement or the Prospectus (as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto) or any
preliminary
29
-29-
prospectus, or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims, damages or
liabilities are caused by any untrue statement or omission or alleged untrue
statement or omission made in reliance upon and in conformity with information
relating to any Underwriter furnished to the Company in writing by such
Underwriter through the Representatives expressly for use therein; provided that
the foregoing indemnity with respect to any preliminary prospectus shall not
inure to the benefit of any Underwriter (or to the benefit of any person
controlling such Underwriter) from whom the person asserting any such losses,
claims, damages or liabilities purchased Shares if such untrue statement or
omission or alleged untrue statement or omission made in such preliminary
prospectus is eliminated or remedied in the Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto) and, if required by law, a copy of the Prospectus (as so amended or
supplemented) shall not have been furnished to such person at or prior to the
written confirmation of the sale of such Shares to such person.
Each of the Selling Shareholders agrees to indemnify and hold
harmless each Underwriter and each person, if any, who controls any Underwriter
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act, from and against any and all losses, claims, damages and
liabilities (including, without limitation, the legal fees and other expenses
incurred in connection with any suit, action or proceeding or any claim
asserted) caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or the Prospectus (as
amended or supplemented if the Company shall have furnished any amendments or
supplements thereto) or any preliminary prospectus, or caused by any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, except insofar as
such losses, claims, damages or liabilities are caused by any untrue statement
or omission or alleged untrue statement or omission made in reliance upon and in
conformity with information relating to any Underwriter furnished to the Company
in writing by such Underwriter through the Representatives expressly for use
therein and except that no Selling Shareholder shall be liable under this
Section 7 for an amount exceeding the aggregate Purchase Price of the Shares
sold by such Selling Shareholder hereunder.
Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, its directors, its officers who sign the Registration
Statement and each person who controls the Company within the meaning of Section
15 of the Securities Act and Section 20 of the Exchange Act and each Selling
Shareholder to the same extent as the foregoing indemnity from the Company and
the Selling Shareholders to each Underwriter, but only with reference to
information relating to such Underwriter furnished to the Company in writing by
such Underwriter through the Representatives expressly for use in
30
-30-
the Registration Statement, the Prospectus, any amendment or supplement thereto,
or any preliminary prospectus.
If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any person in respect of which indemnity may be sought pursuant to the preceding
paragraphs of this Section 7, such person (the "Indemnified Person") shall
promptly notify the person against whom such indemnity may be sought (the
"Indemnifying Person") in writing, and the Indemnifying Person, upon request of
the Indemnified Person, shall retain counsel reasonably satisfactory
to the Indemnified Person to represent the Indemnified Person and any others the
Indemnifying Person may designate in such proceeding and shall pay the fees and
expenses of such counsel related to such proceeding. In any such proceeding, any
Indemnified Person shall have the right to retain its own counsel, but the fees
and expenses of such counsel shall be at the expense of such Indemnified Person
unless (i) the Indemnifying Person and the Indemnified Person shall have
mutually agreed to the contrary, (ii) the Indemnifying Person has failed within
a reasonable time to retain counsel reasonably satisfactory to the Indemnified
Person or (iii) the named parties in any such proceeding (including any
impleaded parties) include both the Indemnifying Person and the Indemnified
Person and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It is
understood that the Indemnifying Person shall not, in connection with any
proceeding or related proceeding in the same jurisdiction, be liable for the
fees and expenses of more than one separate firm (in addition to any local
counsel) for all Indemnified Persons, and that all such fees and expenses shall
be reimbursed as they are incurred. Any such separate firm for the Underwriters
and such control persons of the Underwriters shall be designated in writing by
X.X. Xxxxxx Securities Inc. and any such separate firm for the Company, its
directors, its officers who sign the Registration Statement and such control
persons of the Company shall be designated in writing by the Company and any
such separate firm for the Selling Shareholders will be designated in writing by
the Attorneys-in-Fact. The Indemnifying Person shall not be liable for any
settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the plaintiff, the
Indemnifying Person agrees to indemnify any Indemnified Person from and against
any loss or liability by reason of such settlement or judgment. Notwithstanding
the foregoing sentence, if at any time an Indemnified Person shall have
requested an Indemnifying Person to reimburse the Indemnified Person for fees
and expenses of counsel as contemplated by the second and third sentences of
this paragraph, the Indemnifying Person agrees that it shall be liable for any
settlement of any proceeding effected without its written consent if (i) such
settlement is entered into more than 30 days after receipt by such Indemnifying
Person of the aforesaid request and (ii) such Indemnifying Person shall not have
reimbursed the Indemnified Person in accordance with such request prior to the
date of such settlement. No Indemnifying Person shall, without the prior written
consent of the Indemnified Person, effect any settlement of any pending or
31
-31-
threatened proceeding in respect of which any Indemnified Person is or could
have been a party and indemnity could have been sought hereunder by such
Indemnified Person, unless such settlement includes an unconditional release of
such Indemnified Person from all liability on claims that are the subject matter
of such proceeding.
If the indemnification provided for in the first three paragraphs of
this Section 7 is unavailable to an Indemnified Person or insufficient in
respect of any losses, claims, damages or liabilities referred to therein, then
each Indemnifying Person under such paragraph, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company and the Selling Shareholders on the one hand
and the Underwriters on the other hand from the offering of the Shares or (ii)
if the allocation provided by clause (i) above is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of the
Company and the Selling Shareholders on the one hand and the Underwriters on the
other hand in connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company and the Selling
Shareholders on the one hand and the Underwriters on the other hand shall be
deemed to be in the same respective proportions as the net proceeds from the
offering of the Shares (before deducting expenses) received by the Company and
the Selling Shareholders and the total underwriting discounts received by the
Underwriters, in each case as set forth in the table on the cover of the
Prospectus, bear to the aggregate public offering price of the Shares. The
relative fault of the Company and the Selling Shareholders on the one hand and
the Underwriters on the other hand shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company and the Selling Shareholders or by the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The Company, the Selling Shareholders and the Underwriters agree
that it would not be just and equitable if contribution pursuant to this Section
7 were determined by pro rata allocation (even if the Selling Shareholders or
the Underwriters were treated as one entity for such purposes) or by any other
method of allocation that does not take account of the equitable considerations
referred to in the immediately preceding paragraph. The amount paid or payable
by an Indemnified Person as a result of the losses, claims, damages and
liabilities referred to in the immediately preceding paragraph shall be deemed
to include, subject to the limitations set forth above, any legal or other
expenses incurred by such Indemnified Person in connection with investigating or
defending any such action or claim. Notwithstanding the provisions of this
Section 7, in no event shall an Underwriter be
32
-32-
required to contribute any amount in excess of the amount by which the total
price at which the Shares underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages that such Underwriter
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section ll(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations to contribute
pursuant to this Section 7 are several in proportion to the respective number of
Shares set forth opposite their names in Schedule I hereto, and not joint.
The remedies provided for in this Section 7 are not exclusive and
shall not limit any rights or remedies which may otherwise be available to any
indemnified party at law or in equity.
The indemnity and contribution agreements contained in this Section
7 and the representations and warranties of the Company and the Selling
Shareholders set forth in this Agreement shall remain operative and in full
force and effect regardless of (i) any termination of this Agreement, (ii) any
investigation made by or on behalf of any Underwriter or any person controlling
any Underwriter or by or on behalf of the Company, its officers or directors or
any other person controlling the Company or the Selling Shareholders and (iii)
acceptance of and payment for any of the Shares.
8. Notwithstanding anything herein contained, this Agreement may be
terminated in the absolute discretion of the Representatives, by notice given to
the Company and the Selling Shareholders, if after the execution and delivery of
this Agreement and prior to the Closing Date (i) trading generally shall have
been suspended or materially limited on or by, as the case may be, any of the
New York Stock Exchange or the American Stock Exchange or the National
Association of Securities Dealers, Inc., (ii) trading of any securities of the
Company shall have been suspended on any exchange, (iii) a general moratorium on
commercial banking activities in New York shall have been declared by either
Federal or New York State authorities, or (iv) there shall have occurred any
outbreak or escalation of hostilities or any change in financial markets or any
calamity or crisis that, in the judgment of the Representatives, is material and
adverse and which, in the judgment of the Representatives, makes it
impracticable to market the Shares being delivered at the Closing Date on the
terms and in the manner contemplated in the Prospectus.
9. This Agreement shall become effective upon the later of (x)
execution and delivery hereof by the parties hereto and (y) release of
notification of the effectiveness of the Registration Statement (or, if
applicable, any post-effective amendment) by the Commission.
33
-33-
If on the Closing Date, any one or more of the Underwriters shall
fail or refuse to purchase Shares which it or they have agreed to purchase
hereunder on such date, and the aggregate number of Shares which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase is not more
than one-tenth of the aggregate number of Shares to be purchased on such date,
the other Underwriters shall be obligated severally, in the proportions that the
number of Shares set forth opposite their respective names in Schedule I bears
to the aggregate number of Shares set forth opposite the names of all such
non-defaulting Underwriters, or in such other proportions as the Representatives
may specify, to purchase the Shares which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such date; provided
that in no event shall the number of Shares that any Underwriter has agreed to
purchase pursuant to Section 1 be increased pursuant to this Section 9 by an
amount in excess of one-ninth of such number of Shares without the written
consent of such Underwriter. If on the Closing Date, any Underwriter or
Underwriters shall fail or refuse to purchase Shares which it or they have
agreed to purchase hereunder on such date, and the aggregate number of Shares
with respect to which such default occurs is more than one-tenth of the
aggregate number of Shares to be purchased on such date, and arrangements
satisfactory to the Representatives and the Company for the purchase of such
Shares are not made within 36 hours after such default, this Agreement shall
terminate without liability on the part of any non-defaulting Underwriter or the
Company. In any such case either you or the Company shall have the right to
postpone the Closing Date, but in no event for longer than seven days, in order
that the required changes, if any, in the Registration Statement and in the
Prospectus or in any other documents or arrangements may be effected. Any action
taken under this paragraph shall not relieve any defaulting Underwriter from
liability in respect of any default of such Underwriter under this Agreement.
10. If this Agreement shall be terminated by the Underwriters, or
any of them, because of any failure or refusal on the part of the Company or the
Selling Shareholders to comply with the terms or to fulfill any of the
conditions of this Agreement, or if for any reason the Company or the Selling
Shareholders shall be unable to perform their obligations under this Agreement
or any condition of the Underwriters' obligations cannot be fulfilled, the
Company and the Selling Shareholders agree to reimburse the Underwriters or such
Underwriters as have so terminated this Agreement with respect to themselves,
severally, for all out-of-pocket expenses (including the fees and expenses of
their counsel) reasonably incurred by such Underwriters in connection with this
Agreement or the offering contemplated hereunder.
11. This Agreement shall inure to the benefit of and be binding upon
the Company, the Selling Shareholders, the Underwriters, any controlling persons
referred to herein and their respective successors and assigns. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any other person, firm or corporation
34
-34-
any legal or equitable right, remedy or claim under or in respect of this
Agreement or any provision herein contained. No purchaser of Shares from any
Underwriter shall be deemed to be a successor by reason merely of such purchase.
12. Any action by the Underwriters hereunder may be taken by the
Representatives jointly or by X.X. Xxxxxx Securities Inc. alone on behalf of the
Underwriters, and any such action taken by the Representatives jointly or by
X.X. Xxxxxx Securities Inc. alone shall be binding upon the Underwriters. All
notices and other communications hereunder shall be in writing and shall be
deemed to have been duly given if mailed or transmitted by any standard form of
telecommunication. Notices to the Underwriters shall be given to the
Representatives, c/o X.X. Xxxxxx Securities Inc., 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000 (telefax: (000) 000-0000); Attention: Syndicate Department. Notices
to the Company shall be given to it at Sofamor Xxxxx Group, Inc., 0000 Xxxxxxx
Xxxxx, Xxxxxxx, Xxxxxxxxx 00000 (telefax: (000) 000-0000); Attention: Chief
Financial Officer. Notice to the Selling Shareholders shall be given to
Xxxxx-Xxxxxx Xxxxxx Plais, La Canadienne, Avenue X.X. Xxxxxxx, 00000 Xx
Xxxxxxx, Xxxxxx (telefax: 011-33-3-21-05-91-79), copy to Xxxxxxxx & Associes, 00
xxx xx Xxxxxxxxxx, 00000 Xxxxx, Xxxxxx (telefax: 011-33-1-53-83-74-01);
Attention: Xxxxxxxxx Xxxxxxxx.
13. This Agreement may be signed in counterparts, each of which
shall be an original and all of which together shall constitute one and the same
instrument.
14. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE CONFLICTS
OF LAWS PROVISIONS THEREOF.
35
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If the foregoing is in accordance with your understanding, please
sign and return four counterparts hereof.
Very truly yours,
SOFAMOR XXXXX GROUP, INC.
By: /s/ X.X. Xxxxxxx
----------------------------------
Name: X.X. Xxxxxxx
Title: Chief Executive Officer
SELLING SHAREHOLDERS
By: /s/ X.X. Xxxxxxx
----------------------------------
Name: X.X. Xxxxxxx
Title: Attorney-in-Fact
As Attorney-in-Fact acting on behalf
of each of the Selling Shareholders
named in Schedule II to this
Agreement.
Accepted: February 24, 1998
X.X. XXXXXX SECURITIES INC.
PAINEWEBBER INCORPORATED
XXXXX XXXXXX INC.
Acting severally on behalf
of themselves and the several
Underwriters listed in
Schedule I hereto.
By: X.X. XXXXXX SECURITIES INC.
By: /s/ Xxxxx X. Xxxxxx
-----------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
36
[CONFORMED]
SCHEDULE I
Number of
Shares To Be
Underwriter Purchased
----------- -------------
X.X. Xxxxxx Securities Inc....................................... 900,000
PaineWebber Incorporated ........................................ 900,000
Xxxxx Xxxxxx Inc. ............................................... 900,000
Xxxxxxxxx & Company, Inc. ....................................... 104,000
Xxxxxxx Xxxxxx & Co., Inc. ...................................... 104,000
Xxxxxx X. Xxxxx & Co. Incorporated .............................. 104,000
Xxxxxx Xxxxxx & Company, Incorporated ........................... 104,000
Xxxxxxxx Inc..................................................... 104,000
-------------
Total 3,220,000
=============
37
[CONFORMED]
SCHEDULE II
Shares to be sold by the
Company and the Selling Shareholders
Number of
Name Shares to be Sold
----------------------------------------------------------- ------------------
Sofamor Xxxxx Group, Inc. 1,620,000
Yves Xxxx Xxxxxx, M.D. 324,490
Xxxxx-Xxxxxx Plais 120,611
Xxxxx Xxxxxx 123,266
Xxxxxxxxx Xxxxxx 123,266
Xxxxx Xxxxxx Xxxxxx 324,491
Xxxxxxxx Xxxxxx 114,415
Xxxx-Xxxxx Xxxxxx 117,365
Xxxxxxxxx Xxxxxx Gauzan 123,266
Xxxxxxxxx Xxxxxx Xxxxxxx 114,415
Xxxxx-Xxxxxxxxx Xxxxxxx 114,415
------------------
Total 3,220,000
==================
38
[CONFORMED]
SCHEDULE III
Material Subsidiaries of the Company
Percent of
Ownership
Name Or Interest
-------------------------------------------------------- -----------------
1. Sofamor S.N.C. 100%
2. Sofamor Xxxxx Asia Pacific Limited 100%
3. Sofamor Xxxxx Canada, Inc. 100%
4. Warsaw Orthopedic, Inc. 100%
5. Sofamor Xxxxx G.m.b.H 100%
6. Sofamor Xxxxx Properties, Inc. 100%
7. Xxxxx Capital Corporation 100%
8. Mednext, Inc. 100%
9. Sofamor Xxxxx Australia Pty. Ltd. 100%
10. Sofamor Xxxxx (Puerto Rico), Inc. 100%
11. Sofamor Xxxxx Nederland B.V. 100%
12. Colorado S.A. 100%
13. Sofamor Xxxxx (NZ) Limited 100%
14. Sofamor Xxxxx South Africa (Pty.) Limited 100%
15. Sofamor Xxxxx (U.K.) Limited 100%
16. Sofamor Xxxxx Holdings, Inc. 100%
17. Sofamor Xxxxx Ireland Limited 100%
18. Surgical Navigation Technologies, Inc. 100%
19. SDGI Holdings, Inc. 100%
20. DMI Tennessee Holdings, Inc. 100%
21. Sofamor Xxxxx X.X. 100%
22. DMI Delaware Holdings, Inc. 100%
23. Sofamor Xxxxx Italia S.r.l. 100%
24. Sofamor Xxxxx Iberica S.A. 100%
25. Sofamor Xxxxx Benelux S.A. 100%
26. Kobayashi Sofamor Xxxxx X.X. 50%
27. Xxxxx Korea Co., Ltd. 50%
28. Somepic Technologie S.A. 33.75%
39
Exhibit A
[FORM OF LOCK-UP AGREEMENT]
_______________, 1998
X.X. XXXXXX SECURITIES INC.
PAINEWEBBER INCORPORATED
XXXXX XXXXXX INC.
As Representatives of
the Underwriters named in
Schedule I to the Underwriting
Agreement referred to below
c/o X.X. Xxxxxx Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Re: Sofamor Xxxxx Group, Inc. -- Public Offering
Ladies and Gentlemen:
The undersigned understands that you, as Representatives of the
several Underwriters, propose to enter into an Underwriting Agreement (the
"Underwriting Agreement") with Sofamor Xxxxx Group, Inc., an Indiana corporation
(the "Company"), and certain Selling Shareholders named therein providing for
the public offering (the "Public Offering") by the several Underwriters named in
Schedule I to the Underwriting Agreement (the "Underwriters") of Common Stock,
no par value, of the Company (the "Common Stock"). Capitalized terms used herein
and not otherwise defined shall have the meanings set forth in the Underwriting
Agreement.
In consideration of the Underwriters' agreement to purchase and make
the Public Offering of the Shares, and for other good and valuable
consideration receipt of which is hereby acknowledged, the undersigned hereby
agrees that, without the prior written consent of X.X. Xxxxxx Securities Inc.,
on behalf of the Underwriters, the undersigned will not, during the period
ending 90 days after the date of the prospectus relating to the Public Offering
(the "Prospectus"), (1) offer, pledge, announce the intention to sell, sell,
contract to sell, sell any option or contract to purchase, purchase any option
or contract to sell, grant any option, right or warrant to purchase, or
otherwise transfer or dispose of, directly or indirectly, any shares of Common
Stock, or any securities convertible into or exercisable or exchangeable for
Common Stock (including without limitation, Common Stock
40
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which may be deemed to be beneficially owned by the undersigned in accordance
with the rules and regulations of the Securities and Exchange Commission and
securities which may be issued upon exercise of a stock option or warrant) or
(2) enter into any swap or other agreement that transfers, in whole or in part,
any of the economic consequences of ownership of the Common Stock, whether any
such transaction described in clause (1) or (2) above is to be settled by
delivery of Common Stock or such other securities, in cash or otherwise. In
addition, the undersigned agrees that, without the prior written consent of X.X.
Xxxxxx Securities Inc. on behalf of the Underwriters, it will not, during the
period ending 90 days after the date of the Prospectus, make any demand for, or
exercise any right with respect to, the registration of any shares of Common
Stock or any security convertible into or exercisable or exchangeable for Common
Stock.
In furtherance of the foregoing, the Company, and any duly appointed
transfer agent for the registration or transfer of the securities described
herein, are hereby authorized to decline to make any transfer of securities if
such transfer would constitute a violation or breach of this letter agreement.
The undersigned hereby represents and warrants that the undersigned
has full power and authority to enter into this letter agreement. All authority
herein conferred or agreed to be conferred and any obligations of the
undersigned shall be binding upon the successors, assigns, heirs or personal
representatives of the undersigned.
The undersigned understands that, if the Underwriting Agreement does
not become effective, or if the Underwriting Agreement (other than the
provisions thereof which survive termination) shall terminate or be terminated
prior to payment for and delivery of the Common Stock to be sold thereunder, the
undersigned shall be released form all obligations under this letter agreement.
The undersigned understands that the Underwriters are entering into
the Underwriting Agreement and proceeding with the Public Offering in reliance
upon this letter agreement.
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-3-
This letter agreement shall be governed by and construed in
accordance with the laws of the State of New York, without regard to the
conflict of laws principles thereof.
Very truly yours,
------------------------------
Name:
Accepted as of the date first set
forth above:
X.X. XXXXXX SECURITIES INC.
PAINEWEBBER INCORPORATED
XXXXX XXXXXX INC.
Acting severally on behalf of themselves and
the several Underwriters named in Sched-
ule I to the Underwriting Agreement
By: X.X. XXXXXX SECURITIES INC.
By:
-----------------------------------------
Name:
Title:
